Why never the California Constitution?

[locosway]

There's always talk about laws and the federal Constitution/BoR, but never the California Constitution. With regards to gun laws, why can't this be used?

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

Or would the same terms mean that anyone can try to be a LEO, so it's equal under the law?

[Left Coast Conservative]

I think it is because there is no explicit right to keep and bear arms in the state constitution. This has long since been confirmed by the courts to mean that there is NO right to keep and bear arms under state law. The 2010 McDonald decision trumps this, giving Californians the RKBA for the first time. Thus the focus on the U.S. constitution and federal law.

[CDFingers]

My guess is that the CA constitution does not explicitly accept the right to keep and bear arms. Rather, it just accepts the right to defend self and property (as regards arms).

I find the omission of the RKBA in the CA constitution to be an unfortunate over sight, easily corrected by a grass roots constitutional amendment.

CDFingers

[locosway]

I think it is because there is no explicit right to keep and bear arms in the state constitution. This has long since been confirmed by the courts to mean that there is NO right to keep and bear arms under state law. The 2010 McDonald decision trumps this, giving Californians the RKBA for the first time. Thus the focus on the U.S. constitution and federal law.

Hmm, so prior to McDonald we didn't have incorporation, and since the California Constitution doesn't have a RKBA statement, privileges and immunities was everything listed, but not arms, since that wasn't part of our constitution.

That makes sense, but in a post McDonald ruling, wouldn't we be able to use this to level the rights and force LOC/LTC on everyone, since obviously the police will always be allowed to carry?

[Left Coast Conservative]

Hmm, so prior to McDonald we didn't have incorporation, and since the California Constitution doesn't have a RKBA statement, privileges and immunities was everything listed, but not arms, since that wasn't part of our constitution.

That makes sense, but in a post McDonald ruling, wouldn't we be able to use this to level the rights and force LOC/LTC on everyone, since obviously the police will always be allowed to carry?

I am not sure of your legal reasoning, but lawsuits have been filed.

[locosway]

I am not sure of your legal reasoning, but lawsuits have been filed.

There are no suits for LOC/LTC for the state that I know of. All of the LTC suits are for compliance with the law that we have, not to make it shall issue nor to allow LOC.

[OleCuss]

I think that the OP has a good point.

Note that the clause/provision cited is not talking about rights, it is talking about privileges or immunities and how they cannot be differentially granted. It is also clear that it is talking P or I granted by the legislature - not by the Constitution (since the P or I under question can be revoked by the legislature).

Net effect is that you cannot grant a privilege to one citizen which is not available to another.

So I see the question as still standing: How can the legislature grant the privilege to an LEO of buying an off-roster firearm when I cannot do the same? (As just one example.)

I suspect there is case law which has futzed with the Constitutional provision, but I don't know exactly how it has been gutted.

Maybe they are claiming that the LEO is not a "citizen" for the purposes of this provision? Maybe they are functioning as an agent for their department?

But even then, I have what California would probably consider the "privilege" of owning a RAW. I do not own that RAW by virtue of any association with any particular organization but by having had the money and the foresight/stupidity to buy it when it was not banned - and to register it.

So why doesn't everyone have the "privilege" of owning a RAW?

I also own a bunch of 30 round mags acquired before they were banned. So why doesn't everyone have that "privilege"?

I'm not saying that there is a good legal argument to be made in this matter because there is far too much I do not know about law - and California law in particular. But I find the idea intriguing.

[Connor P Price]

There are no suits for LOC/LTC for the state that I know of. All of the LTC suits are for compliance with the law that we have, not to make it shall issue nor to allow LOC.

Richards v Prieto is looking for effective shall issue LTC and Charles Nichols' case is looking for LOC.

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[Digi]

Richards v Prieto is looking for effective shall issue LTC and Charles Nichols' case is looking for LOC.

I would suspect we don't count Charles Nichols case.. Seeing as he's defending himself, and having trouble coming up with the funds.

[dantodd]

There's always talk about laws and the federal Constitution/BoR, but never the California Constitution. With regards to gun laws, why can't this be used?



Or would the same terms mean that anyone can try to be a LEO, so it's equal under the law?

I suspect the Fed courts will ultimately (USSC vs. Cal SC) be more friendly to us AND the rulings will be more far reaching.

[dantodd]

Richards v Prieto is looking for effective shall issue LTC and Charles Nichols' case is looking for LOC.

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Actually Richards v. Prieto isn't just for shall issue LTC. If you read the pleadings it is clear that the relief they are asking for is the recognition that the right to "bear arms" means that every non-prohibited person should be able to be armed in the event of violent confrontation. They have left it in the court's hands how to ensure that each Californian has this ability. Further, they assert that CA has a licensing process to allow for concealed carry and that this process must be equally available to all non-prohibited persons in the lack of any other manner of exercising the right.

This may seem a fine point but it is critical.

[Connor P Price]

Actually Richards v. Prieto isn't just for shall issue LTC. If you read the pleadings it is clear that the relief they are asking for is the recognition that the right to "bear arms" means that every non-prohibited person should be able to be armed in the event of violent confrontation. They have left it in the court's hands how to ensure that each Californian has this ability. Further, they assert that CA has a licensing process to allow for concealed carry and that this process must be equally available to all non-prohibited persons in the lack of any other manner of exercising the right.

This may seem a fine point but it is critical.

Of course. My overly simplified explanation was merely to point out that there are both such cases currently in the works that were mentioned in the post I had quoted.

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[locosway]

Richards v Prieto is looking for effective shall issue LTC and Charles Nichols' case is looking for LOC.

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So far I'm dismissing Nichols case from my own observations.

And, if we challenged the priviliges and immunities as listed in my OP, this would kill the roster, LTC, LOC, and SB23. I know it's too much to wish for, but one can hope.

[goldrush]

I think it is because there is no explicit right to keep and bear arms in the state constitution. This has long since been confirmed by the courts to mean that there is NO right to keep and bear arms under state law. The 2010 McDonald decision trumps this, giving Californians the RKBA for the first time. Thus the focus on the U.S. constitution and federal law.

Just what are the California gun organizations doing to get such an amendment inserted?

[locosway]

Just what are the California gun organizations doing to get such an amendment inserted?

2010 McDonald v. Chicago, the ruling was that the 2A applies to the states and is incorporated per the 14A.

Hence, the 2A now applies to CA, but we have to still work on getting the bad laws overturned.